All posts by Paul J. McAndrew, Jr.

Federal Regulators Link Workers’ Comp Failures To Income Inequality

Today’s post was shared by Gelman on Workplace Injuries and comes from www.npr.org

A few hours after ProPublica and NPR issued the first in a series of reports about workers’ compensation "reforms" sweeping the country, the Occupational Safety and Health Administration coincidentally released a paper linking workplace injuries to income inequality.

The OSHA paper and ProPublica/NPR stories come to similar conclusions about how some injured workers have been affected by a decade of changes in workers’ compensation laws, including cutbacks in benefits and more difficulty in getting benefits.

But OSHA goes on to say that many injured workers and their families find themselves in "a trap which leaves them less able to save for the future or to make the investments in skills and education that provide the opportunity for advancement."

Among the paper’s other major points:

  • On average, injured workers earn $31,000 or 15 percent less in the 10 years following a workplace injury
  • Employers pay only 21 percent of the costs of workplace injuries through workers’ compensation. Families end up bearing 50 percent of the costs and taxpayers pay 16 percent when workers resort to food stamps or Social Security Disability.
  • With employers not bearing the full costs, which OSHA characterizes as a subsidy, the incentive to provide a safe workplace is undermined.
  • Fewer than 40 percent of eligible injured workers apply for workers’ compensation benefits.
  • In California, 1/3 of workers with reported amputations at work did not receive workers’ compensation…

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Workers’ Compensation Basics: What is a Workers’ Compensation Accident?

Today’s post comes from guest author Brody Ockander, from Rehm, Bennett & Moore.

This blog post is the third in a series that examines the basics of workers’ compensation.

To be a covered workers’ compensation claim, an employee’s personal injury must be caused by an accident or occupational disease, but what does that mean?

The Nebraska Workers’ Compensation Act defines accident as: “an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. The claimant shall have a burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There shall be no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment. …” Nebraska Revised Statute 48-151 (2)

Of course, many workers’ compensation injuries are not as simple or as clear as a broken arm that was the result of a fall. Some injuries are caused by repetitive motion or cumulative trauma on the job. In those cases, the injuries are still considered workers’ compensation “accidents” under the definition above, even though the injuries did not truly occur “suddenly and violently” as required by the statute. 

As for an occupational disease, the Workers’ Compensation Act defines it as “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and shall exclude all ordinary diseases of life to which the general public is exposed.” Nebraska Revised Statute 48-151 (3) Examples to think about would be mesothelioma for asbestos workers or black lung for coal miners.

In sum, pretty much any injury or illness that an employee receives from work can fit into the definition of “accident” under the Nebraska Workers’ Compensation Act. However, proving the injury is much more difficult and may require the help of a lawyer.

Read the previous blog posts in the series by clicking on these links: Workers’ Compensation Basics: Are You an Employee? and What is Workers’ Compensation?

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Is a Pulmonary Embolism Compensable under Workers’ Compensation?

Today’s post comes from guest author Brody Ockander, from Rehm, Bennett & Moore.

The short answer is yes, but it could be difficult to prove if it is not directly related to another workers’ compensation injury. In Nebraska, proving a pulmonary embolism and deep vein thrombosis (DVT) requires the same legal and medical causation tests as a heart attack or stroke (see Zissin v. Shanahan and Wingfield v. Hill Brothers Transportation, Inc.).

What that means is legal causation must be proved by showing that exertion or stress encountered during employment is greater than that experienced during the ordinary non-employment life. Then, it must also be proven by medical causation: i.e., show that the employment contributed in some material and substantial degree.

On the other hand, if someone develops DVT as a result of another injury caused by work, it would probably be much easier to meet the causation required to prove compensability. For example, let’s say a worker injures his knee during work and has surgery on that knee. Then, as a result of the surgery, a postoperative complication of DVT arises and eventually becomes a pulmonary embolism. In that scenario, the pulmonary embolism is clearly related to the work injury and clearly compensable.

Absent a prior injury, however, causation must be met by the standards stated above, which will be very fact intensive. An example of this scenario came up in the recent case, Wingfield v. Hill Brothers Transportation, Inc., 288 Neb. 174. In that case, a truck driver for 35 years asserted that his deep vein thrombosis and pulmonary embolism was from sitting while driving a truck so long. The workers’ compensation court dismissed the cases, holding that the truck driver did not adequately prove legal and medical causation.

This case illustrates how difficult the causation standard is for pulmonary embolism cases that are not directly linked to a work injury. These types of cases will almost certainly require the assistance of a lawyer. 

Lawsuit aims to ban swimming with manatees in Florida

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from www.foxnews.com

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Jan. 15, 2014: A manatee calf nurses from its mother inside of the Three Sisters Springs in Crystal River, Florida.

The U.S. Fish and Wildlife Service is about to be sued over an animal that isn’t exactly “endangered.”

ECO-LAWSUIT: The Public Employees for Environmental Responsibility, a Washington, D.C.-based group, wants several tough new restrictions on human activity in manatee areas.

The Public Employees for Environmental Responsibility, a Washington, D.C.-based nonprofit, filed an Intent to Sue notice this week accusing the federal agency of mistreating “the endangered Florida manatee.”

PEER, which last month sued FWS to stop dirt bike and off-road vehicle noise and air pollution in California, says the agency is “facilitating significant physical harassment” of manatees by allowing the public to swim with the animals in the Crystal River National Wildlife Refuge.

The Crystal River National Wildlife Refuge was established in 1983, and it’s the only refuge created specifically for the protection of the Florida manatee, according to FWS.

By issuing special-use permits to local dive shops that lead manatee swim tours, PEER says the environmental agency is harming the animals.

The effort has the appearance of an overreaction. Natural events such as cold water and toxic red-tides have done far more to harm manatees in recent years than human contact. In the overlapping period, the animals have made…

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Mahwah man can pursue suit against Finkelstein & Partners law firm

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from www.northjersey.com

Mahwah man can pursue suit against Finkelstein & Partners law firm

By KATHLEEN LYNN

STAFF WRITER | 

The Record

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* Cites overcharges in slip-and-fall case

A Mahwah man’s lawsuit claiming that his lawyers overcharged him in a personal-injury case can move forward under a recent court ruling — though one of the original defendants, the well-known law firm Jacoby & Meyers, has been let off the hook.

Jeffrey Harding of Mahwah and his 80-year-old mother, Nancy Harding of Rockland County, hired lawyers with ties to Jacoby & Meyers, a New York company known for its television commercials, to file two slip-and-fall lawsuits on their behalf.

Nancy Harding hired Finkelstein & Partners of Newburgh, N.Y., after she suffered an injury at a Suffern, N.Y., tile business, and Jeffrey Harding, who had a separate case, hired Andrew Finkelstein of Finkelstein & Partners.

The Finkelstein firm shares many office locations and staff with Jacoby & Meyers, according to a lawsuit filed by the Hardings after their slip-and-fall cases were settled.

In their lawsuit, both Nancy and Jeffrey Harding claimed that the lawyers overcharged them by adding fees for services from a company, Total Trial Solutions, which was partly owned by their lawyers. Those fees were in addition to the regular attorneys’ fees of 33 percent of the amount recovered, the Hardings said in their lawsuit, which named Jacoby & Meyers, Finkelstein & Partners, Total Trial Solutions, and…

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Wage Disparity and Workers’ Compensation

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

When I began representing injured workers at a labor law firm in the 1970s, over one-third of the workforce was unionized. Almost all the workers I represented earned the maximum amount allowable to trigger the maximum workers’ compensation benefit in the event they missed work due to a work injury. Today with Union membership in the United States down to 6.6% of the workforce (about the same rate as at the turn of the 20th Century, few of the workers I represent are “maximum” earners, triggering maximum benefits under workers’ compensation. In fact, many of the workers I represent earn less than $10 per hour, which means their family income falls beneath the national poverty line.

Statistics about economic inequality are staggering. The richest 1% of the nation controls 40% of the wealth and earns 20% of the national income – proportions very similar to those in the early 20th Century (and up from about 25% and 9% in the 1970s when I started representing injured workers). Two recent books attempt to explain what, if anything, can be done to revive unionism. Historian Steve Frazer’s Age of Acquiescence looks at the long sweep of work in the United States. Frazer thinks the labor question is the key to confronting the economic gap and all its political and cultural consequences.  

The second book is by a lawyer who represented workers in Chicago, Thomas Geoghegan. Only One Thing Can Save Us suggests we have to return to the early labor union courage to challenge the inequities that surround workers – a spirit that is now largely evaporated. We have abandoned many of the crucial goals of the Progressive years – the rights to minimum wage, a limit on hours, unemployment insurance, and other benefits such as health insurance, pensions, paid vacations – that were won only through collective bargaining. 

The decline in unionism has hurt all American workers. About one in ten American workers is now self-employed (the most rapidly growing group in this category are maids and housekeepers, carpenters, landscapers, and hairdressers). Part time workers make up 17% of the labor force.  Additionally, workers hired as Independent Contractors (like many at FedEx, for example) are not eligible for unemployment compensation, do not have the right to organize a union, are not guaranteed overtime pay or the minimum wage, and lack access to the employment protections afforded by the Civil Rights Act. Moreover, the employers do not have to contribute to Social Security. We see this abuse often by employers characterizing workers as Independent Contractors who should be employees for whom the workers’ compensation, unemployment compensation premiums and payroll taxes is paid.

Times have changed and certainly not for the better.

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What is Legal Aid and Who Does It Help?

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

Legal Aid (LANC) is a non-profit law firm that provides free legal services in civil matters to low-income North Carolina residents. LANC has 24 offices throughout the state and provides services to residents in all 100 counties.

In order to be considered eligible for their services your household income must fall approximately 125% below federal poverty guidelines. According to the U.S. Department of Health and Human Services, the federal poverty level in 2015 for a family of four is $36,375. If the legal assistance needed involves a domestic violence case or if the client is a senior citizen then the poverty guidelines may not apply.

Examples of cases being handled by Legal Aid in N.C. are bankruptcy, student rights, unemployment compensation, Medicaid/Medicare and/or health insurance issues, foreclosures, housing discrimination, family violence, wage theft, and tax assistance.

To read more about their services offered go to: http://www.legalaidnc.org/

Click here to learn more about the HHS 2015 Poverty Guidelines.

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What is Workers’ Compensation?

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

This is the first installment of a series that will educate workers and their families about injury, disease and death resulting from work. The most basic question is: What is workers’ compensation?

Workers’ compensation is a legal system established in all 50 states, Washington, D.C., and for federal employees. Workers’ compensation laws began in the United States in 1912. The laws are different in each state, but the basics of the law are quite similar in all states.

If a worker is injured, contracts a disease or dies as a result of work activities, all of the medical and burial expenses are to be paid by the employer. The employer is also responsible to pay for lost wages, physical disability, and mental disability. Workers’ compensation does not pay for pain and suffering and is generally limited in duration of payments, although some states pay lifetime benefits.

The balance of this series will go through the basic steps of how to obtain workers’ compensation benefit. The goal is to inform, which helps victims of workplace injury, disease or death receive proper compensation.